United States Court of Appeals
For the First Circuit
No. 03-2410
UNITED STATES,
Appellee,
v.
JOHN MEADA, III,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Lynch, Circuit Judge,
Leval,* Senior Circut Judge,
and Lipez, Circuit Judge.
Alison M. Adams, with whom The Chase Law Group and David R.
Yannetti were on brief, for appellant.
Donald L. Cabell, Assistant U.S. Attorney, with whom Michael
J. Sullivan, U.S. Attorney, was on brief, for appellee.
May 23, 2005
*
Of the Second Circuit, sitting by designation.
LIPEZ, Circuit Judge. John Meada was arrested and
indicted on weapons possession charges after police discovered
firearms and ammunition in his home during a warrantless search.
Before trial, Meada moved to suppress all of the evidence that
police had discovered in his apartment. After several evidentiary
hearings, the trial court granted Meada's motion with regard to
grenades found in an ammunition can but ruled that other firearms
and ammunition were admissible because they were either in a
location Meada’s girlfriend consented to be searched or were in a
container in plain sight that betrayed its contents. Meada entered
a conditional guilty plea but preserved the right to challenge the
suppression ruling on appeal, which he now does. He also
challenges his sentence. We affirm the denial of Meada's motion to
suppress but vacate his sentence in light of United States v.
Booker, 125 S. Ct. 738 (2005), and remand for the limited purpose
of resentencing.
I.
We take the following facts from the district court's
findings, drawing on the record for additional facts as necessary.
On January 2, 2002, Carol Bowering went to the Hanover,
Massachusetts Police Department to inquire about obtaining a
restraining order against John Meada, her boyfriend, who she
claimed had recently been violent toward her. Bowering sought to
collect personal belongings that she brought to Meada's apartment
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while living there with him since November 2001. A police officer
instructed her to apply for a restraining order at the Hingham
District Court, and she did so.
Bowering returned to the Hanover Police Department with
her restraining order later that afternoon. She told the officer
on duty, Stephen Moar, that she had lived with Meada for
approximately two months and that she kept clothing and a cat at
his apartment. Moar inquired for officer-safety purposes whether
there were any weapons in the apartment. Bowering answered that
Meada had two long guns and one handgun, specifying their locations
in the apartment. Upon running a criminal history check on Meada,
Moar discovered that he had a criminal record and did not have a
license to carry a firearm. Moar and another officer, Gregg Nihan,
then accompanied Bowering to Meada's apartment to collect her
belongings.
Meada was not home when Bowering and the officers reached
the apartment. Bowering led the officers into the two-family unit
that Meada shared with his relative, Barbara Valentonis, and
through the unlocked door to Meada's apartment. She indicated a
BB gun and pellet rifle in plain view in the entryway and living
room, and then pointed to a kitchen cabinet where she said Meada
kept another gun. Upon opening the cabinet, Nihan found a .25
caliber wooden handled handgun, several boxes of ammunition, and
what he and Moar recognized as an "ammunition can," a metal
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container commonly used to store ammunition. Nihan opened the can
without asking Bowering's permission to do so. He discovered two
grenades inside.
Moar then accompanied Bowering into the bedroom where her
personal belongings were stored. A case labeled "GUN GUARD" stood
upright in the bedroom in plain view; it was fastened but not
locked. Without asking Bowering for permission, Moar placed the
case on the bed and opened it. He discovered three guns inside:
one sawed-off shotgun, one .40 caliber handgun and one .32 caliber
Winchester rifle. Meada returned home soon thereafter. Moar
served him with the restraining order outside the apartment, placed
him under arrest for weapons violations, and instructed him to wait
in a police car while the officers finished their search and
Bowering collected the rest of her possessions.
Meada was subsequently indicted on three weapons charges.
Count One of the indictment charged him with being a felon in
possession of firearms and ammunition, 18 U.S.C. § 922(g)(1).
Counts Two and Three charged him with possession of an unregistered
firearm, 26 U.S.C. § 5861(d), with Count Two based on the sawed-off
shotgun, and Count Three based on the grenades.1 In response,
Meada moved to suppress all of the evidence seized from his
1
None of the charges involved the pellet rifle and BB gun
discovered in the entryway and living room.
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apartment, contending that the warrantless search violated his
Fourth Amendment rights.
At a suppression hearing on February 28, 2003, the
government presented several witnesses including Bowering, Moar,
and Nihan. Bowering testified about her relationship with Meada
and her activities on the day of the search. Moar and Nihan
testified about the search itself, including the basis for their
belief that Bowering lived in the apartment and had authority to
consent to a search of it. First, Bowering appeared to be more
than a casual visitor because she kept clothing and her cat at the
apartment and because she asserted that she would be able to enter
the apartment in Meada's absence (without a key). Moar also
testified that he had driven by Meada's apartment numerous times
between 4 p.m. and midnight during November and December 2001
because Meada was a suspect in an unrelated investigation, and that
Bowering's red Firebird was regularly parked there. Meada then
presented Valentonis, his sole witness. She testified that
Bowering visited the apartment several times a week but that she
had never seen Bowering there without Meada.
Following the testimony, the court denied Meada's motion
with regard to the handgun and ammunition discovered in the kitchen
cabinet, finding that the officers reasonably believed Bowering had
authority to consent, and that she had actual authority to consent,
to a search of the apartment that included the cabinet. The court
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reserved judgment on items found in the ammunition can and gun
case, allowing additional briefing on the admissibility of items
seized from closed containers.
On June 19, 2003, the court held another hearing at which
Meada and his friend Daniel Marshalsea testified pursuant to a
Motion to Reopen. Meada claimed that Bowering had never lived with
him, that he always locked his apartment door but that the lock had
been jimmied open on the day of the search, that the weapons were
not his but rather belonged to another man who had briefly stayed
in his apartment, and that he did not store the guns or the GUN
GUARD case in plain sight. Marshalsea testified that Bowering had
come to Meada's apartment only once or twice a week and that her
relationship with Meada was not sexual. The court rejected both
Meada and Marshalsea's testimony, which conflicted with that
offered by Bowering, the police, and even Meada's own witness,
Valentonis, and found that Meada had "taken this occasion to commit
perjury." The court then repeated its earlier ruling that the
handgun and ammunition discovered in the kitchen cabinet were
admissible.
At a third hearing on June 24, 2003, the court granted in
part and denied in part Meada's motion to suppress the weapons
found in the ammunition can and the gun case; that ruling was
reflected in a written order issued on August 29, 2003.
Distinguishing between the areas of the apartment to which Bowering
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had access, and these containers, to which she did not, the court
noted that "[c]onsent to search a dwelling is not necessarily
coterminous with consent to search closed containers within it."
Nonetheless, the court concluded that the firearms found in the gun
case were admissible. It reasoned that "the GUN GUARD case
constructively constituted at least one gun in plain view in the
bedroom" because the label betrayed the container's contents.
Meada thus had no reasonable expectation of privacy in the case and
could not challenge that aspect of the search.
By contrast, the court concluded that Meada did have a
privacy expectation in the ammunition can because its outward
appearance did not reveal that it contained grenades. The court
found that Bowering did not consent to a search of the can, nor
could the police reasonably have believed she had authority to
consent to such a search in light of her initial indication that
she did not own any of the weapons in the apartment. Because the
court also found that the inevitable discovery doctrine did not
apply, it granted Meada's motion to suppress the grenades.2
Following the court's evidentiary rulings, Meada entered
a conditional guilty plea to Counts One and Two of the indictment.
Count Three of the indictment, involving the grenades, was
dismissed. The court then sentenced Meada to 108 months'
2
The government has not appealed from the suppression of the
grenade evidence.
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imprisonment. This sentence reflected a guidelines calculation
that included a two-level enhancement for obstruction of justice,
U.S.S.G. § 3C1.1 (2002), because of the court's finding that Meada
committed perjury at the June 2003 suppression hearing. The court
rejected Meada's argument that a reduction for acceptance of
responsibility was appropriate under U.S.S.G. § 3E1.1 (2002),
concluding that in light of Meada's ongoing insistence that the
weapons found in the apartment were not his, "[t]his is not a case
where Mr. Meada attempted to obstruct justice and has reformed.
This is a case in which he's continuing the misconduct that caused
me to find in June that he had committed perjury."
Meada now appeals, exercising the right he preserved
below to challenge the court's evidentiary rulings. First, he
argues that Bowering did not have actual authority to consent to a
search of the apartment, nor was it reasonable for the police to
believe that she had such authority. He further asserts that the
court should have suppressed the three firearms found in the gun
case for the same reasons that it suppressed the grenades
discovered in the ammunition can. Meada also appeals his sentence,
challenging both the two-level obstruction of justice enhancement
and the court's refusal to adjust the sentence downward for
acceptance of responsibility. Finally, he contends that he is
entitled to be resentenced in light of United States v. Booker, 125
S. Ct. 738 (2005).
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II.
A. The Fourth Amendment
"This court reviews a district court's legal conclusions
involved in denying a motion to suppress the evidence de novo and
its findings of fact for clear error." United States v. Marshall,
348 F.3d 281, 284 (1st Cir. 2003). Our deferential review of the
court's factual findings "'reflects our awareness that the trial
judge, who hears the testimony, observes the witnesses' demeanor
and evaluates the facts first hand, sits in the best position to
determine what actually happened.'" United States v. Charles, 213
F.3d 10, 18 (1st Cir. 2000) (quoting United States v. Young, 105
F.3d 1, 5 (1st Cir. 1997)).
The Fourth Amendment generally requires the police to
obtain a warrant before entering and searching a person's home.
See United States v. Beaudoin, 362 F.3d 60, 65 (1st Cir. 2004),
cert. denied, 125 S. Ct. 484 (2004) ("A warrantless search
involving an intrusion into someone's home is presumptively
unreasonable under the Fourth Amendment."). However, this rule is
not absolute; the Supreme Court has recognized that warrantless
searches do not offend the Fourth Amendment under certain
circumstances. For example, police need not seek a warrant where
"voluntary consent has been obtained, either from the individual
whose property is searched, or from a third party who possesses
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common authority over the premises." Illinois v. Rodriguez, 497
U.S. 177, 181 (1990) (internal citations omitted).
1. Bowering's consent to search the apartment
The district court held that the search of Meada's
apartment was constitutional under the consent exception to the
Fourth Amendment's warrant requirement. Specifically, the court
found that Bowering consented to the search and that she had
authority to do so by virtue of having lived with Meada for two
months. Although Meada disputes whether any actual authority
Bowering had extended to admitting third parties to the apartment,
we need not address that question here.3 Rather, we affirm solely
on the alternate basis offered by the district court: "[e]ven if
Bowering did not actually have the authority to consent to the
search, . . . it was objectively reasonable for the law
enforcement officials to believe that she did." This apparent
authority rationale is sufficient to immunize the search from
constitutional attack regardless of whether Bowering had actual
authority to consent. Rodriguez, 497 U.S. at 186 ("The
Constitution is no more violated when officers enter without a
warrant because they reasonably (though erroneously) believe that
the person who has consented to their entry is a resident of the
3
Meada also contests the district court's finding that
Bowering consented to the search. Given Bowering's undisputed
testimony at the suppression hearing that she voluntarily led the
officers into the apartment and pointed the weapons out to them,
this challenge must fail.
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premises, than it is violated when they enter without a warrant
because they reasonably (though erroneously) believe they are in
pursuit of a violent felon who is about to escape.").
As the Supreme Court has explained, "the consent of one
who possesses common authority over premises or effects is valid as
against the absent, nonconsenting person with whom that authority
is shared." United States v. Matlock, 415 U.S. 164, 170 (1974).
Common authority rests “on mutual use of the property by persons
generally having joint access or control for most purposes . . . ."
Id. at 171 n.7. Even if a person does not in fact have such
authority, police may rely on her consent if they reasonably
believe that she has such authority. The Court set forth the
standard for this reasonable belief in Illinois v. Rodriguez:
[L]aw enforcement officers may [not] always accept a
person's invitation to enter premises. Even when the
invitation is accompanied by an explicit assertion that
the person lives there, the surrounding circumstances
could conceivably be such that a reasonable person would
doubt its truth and not act upon it without further
inquiry. As with other factual determinations bearing
upon search and seizure, determination of consent to
enter must be judged against an objective standard: would
the facts available to the officer at the moment . . .
warrant a man of reasonable caution in the belief that
the consenting party had authority over the premises?
497 U.S. at 188 (quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968)
(internal quotation marks omitted)).
Here, the district court pointed to numerous
circumstances supporting a reasonable belief by the officers that
Bowering had joint access to the apartment such that she could
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consent to a search. Bowering told the officers that she kept
personal possessions, including several changes of clothing, a
photograph of her daughter, and her cat, at the apartment. She
asserted that she could enter the apartment in Meada's absence.
Her claim to have lived with Meada was also consistent with Moar's
independent knowledge that her car had been parked in front of the
apartment several evenings a week during the relevant time frame.
Thus, the officers were not merely acting on an unsubstantiated
assertion that Bowering had joint access to the apartment, but
rather on the totality of the circumstances that supported such an
assertion.
Meada contends that, to the contrary, the circumstances
did not support the officer's belief that Bowering had common
authority over the apartment. He analogizes this case to
Rodriguez, in which the Supreme Court found that a woman who had
previously lived with the defendant but later moved out did not
have the authority to consent to a search of his apartment. 497
U.S. at 181-82. There, the Court noted that Gail Fischer, the
consenting party, no longer lived in the apartment at the time of
the search, that her name was not on the lease, and that she did
not pay rent. Although Fischer had a key to the apartment, she had
obtained it without the defendant's permission. Meada stresses
that Bowering, like Fischer, had another residence and had not been
given a key by the apartment owner.
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In rejecting Meada's argument, we note that Rodriguez’s
factual inquiry was limited to the issue of actual authority. The
lower court in Rodriguez did not reach the question of whether the
officers had an objectively reasonable belief that the person
granting access to the premises had authority over those premises
because it erroneously ruled that, as a matter of law, “reasonable
belief could not validate entry.” 497 U.S. at 189. The Supreme
Court remanded so that the lower court could determine whether the
officers had such a reasonable belief. Id. Because we affirm the
district court’s denial of the suppression motion on the grounds
that, in the officers’ perception, Bowering had apparent authority
to invite them into the apartment, it makes no difference whether
in fact she possessed any more legitimate claim of authority than
Fischer in the Rodriguez case. What matters is whether, based on
the information in the officers’ possession, they reasonably
believed that Bowering had authority to invite them into the
apartment.
Focusing on Bowering’s authority as it appeared to the
officers, Meada contends that because they knew she was seeking a
restraining order against Meada and intended to move out, the
officers could not have reasonably believed she still had authority
to invite them into the apartment. We disagree. So far as the
officers knew, Bowering had not told Meada of the restraining
order. She told them she had been living at the apartment for two
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months and still had her personal belongings including her cat
there. Under the totality of the circumstances, it was objectively
reasonable for the police to believe that Bowering retained "mutual
use of the property" and thus could consent to a search. Matlock,
415 U.S. at 171 n.7; see also United States v. Trzaska, 859 F.2d
1118, 1120 (2d Cir. 1988) (estranged wife had authority to consent
to a search of her former husband's apartment two weeks after she
moved out, where she still had a key and collected personal
belongings during the search).
2. The GUN GUARD case
The district court also denied Meada's motion to suppress
the contents of the gun case found in his bedroom. The court found
that Meada did not have a reasonable expectation of privacy in the
contents of the gun case because the case's GUN GUARD label
"clearly revealed its contents. It was specifically made to carry
guns and was stamped accordingly." Thus, because the gun case was
in plain view in the bedroom, which the police entered with
Bowering's consent, the court treated the firearms inside the case
as if they were also in plain view. Meada contends that this
finding was erroneous. We agree with the district court.
The district court recognized that Bowering's consent to
search the apartment did not necessarily authorize the officers to
search closed containers within the apartment. See United States
v. Karo, 468 U.S. 705, 725 (1984) (O'Connor, J., concurring)
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("Consent to search a container or a place is effective only when
given by one with 'common authority over or other sufficient
relationship to the premises or effects sought to be inspected.'")
(quoting Matlock, 415 U.S. at 171). Specifically, because Bowering
had disclaimed any ownership interest in the weapons in the
apartment, the court noted that she could not have consented to a
search of any closed container that "suggested the presence of
ammunition or firearms." The gun case, like the ammunition can,
appears at first blush to fall into this closed container category.
Upon closer inspection, however, the two are distinguishable.
Although a person generally has an expectation of privacy
in items he places in a closed container, some containers so betray
their contents as to abrogate any such expectation. See United
States v. Huffhines, 967 F.2d 314, 319 (9th Cir. 1992). The
contents of such containers are treated as being in plain view.
United States v. Donnes, 947 F.2d 1430, 1437-38 (10th Cir. 1991).
Even if Bowering did not have the authority to consent to a search
of the gun case, then, the search did not violate Meada's Fourth
Amendment rights if the GUN GUARD label caused the firearms inside
to be in plain view of the officers. See Harris v. United States,
390 U.S. 234, 236 (1968) ("It has long been settled that objects
falling in the plain view of an officer who has a right to be in
the position to have that view are subject to seizure and may be
introduced in evidence.").
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In Arkansas v. Sanders, 442 U.S. 753 (1979), the Supreme
Court specifically cited a gun case as an example of a container in
which the owner has no expectation of privacy:
Not all containers and packages found by police during
the course of a search will deserve the full protection
of the Fourth Amendment. Thus, some containers (for
example a kit of burglar tools or a gun case) by their
very nature cannot support any reasonable expectation of
privacy because their contents can be inferred from their
outward appearance. Similarly, in some cases the
contents of a package will be open to "plain view,"
thereby obviating the need for a warrant.
442 U.S. at 765 n.13. Although the Court later overruled Sanders,
it did so on an unrelated ground involving an application of the
warrant requirement's automobile exception. See California v.
Acevedo, 500 U.S. 565, 569 (1991). Our sister circuits who have
considered the question have concluded that "the plain view
container exception to the warrant requirement of the [F]ourth
[A]mendment remains valid." Donnes, 947 F.2d at 1437 (10th Cir.);
accord United States v. Williams, 41 F.3d 192, 196-97 (4th Cir.
1994) (acknowledging the plain view exception); United States v.
Knoll, 16 F.3d 1313, 1320-21 (2d Cir. 1994) (acknowledging the
exception without citing either Acevedo or Sanders); Huffhines, 967
F.2d at 319 n.5 (9th Cir.) (Acevedo "does not alter the principle
set forth in Sanders that there is no reasonable expectation of
privacy in a container that discloses its contents"); United States
v. Villarreal, 963 F.2d 770, 776 n.2 (5th Cir. 1992) ("the logic of
the Sanders footnote has survived").
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Here, the container at issue was readily identifiable as
a gun case. Particularly in light of the GUN GUARD label, the
container's contents were unambiguous. Cf. United States v. Bonitz,
826 F.2d 954, 956 (10th Cir. 1987) (Sanders exception did not apply
to a hard plastic case that experts identified as a gun case but
that the trial court thought "could equally be suspected of carrying
a violin"). Under Sanders, then, Meada had no reasonable
expectation of privacy in the container's contents and thus the
police search of the case did not violate the Fourth Amendment.
Meada challenges this conclusion, arguing that the
district court should have suppressed the gun case's contents for
the same reason that it suppressed the grenades found in the
ammunition can. The court reasoned that the ammunition can "could
have been used to store something other than weapons or ammunition,"
citing a case in which a search revealed gold currency inside such
a can. See United States v. Gianquitto, No. 96-1408, 1996 WL 383909
(1st Cir. July 10, 1996) (unpublished). The court also noted that
the officer here had expected the can to contain ammunition when,
in fact, it contained grenades. Therefore, the court found, the can
"did not clearly reveal its contents." Meada argues that,
similarly, the gun case could have held something other than guns.
We are not persuaded. If that possibility, in and of
itself, were enough to escape the reach of the Sanders exception,
the exception would have virtually no application. We need not rule
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on the correctness of the district court’s suppression of the
grenades found in the ammunition can. What justified the search of
the gun case was that it reasonably appeared to contain a gun and
that, as a convicted felon, Meada was prohibited from possessing
one. Given that reasonable appearance, the fact that, upon opening
and careful inspection, the gun case might turn out to contain
something other than a gun was irrelevant. Because the officer was
lawfully on the premises and had within his sight an object that
reasonably appeared to be an item of contraband, he was authorized
to seize it.4
B. Guidelines calculation
At his sentencing hearing, Meada challenged the court's
imposition of an obstruction of justice enhancement and its refusal
to grant a downward departure for acceptance of responsibility. He
renews these objections on appeal. We review the district court's
interpretation of the sentencing guidelines de novo and the factual
findings underlying the sentence for clear error. United States v.
4
Meada also argues that the weapons in the gun case, like the
grenades in the ammunition can, should be suppressed because they
were not subject to inevitable discovery and the officers did not
obtain a search warrant. The inevitable discovery doctrine permits
the introduction of evidence obtained in an illegal search if such
evidence would inevitably have been discovered through an
independent legal search. United States v. Silvestri, 787 F.2d
736, 744-45 (1st Cir. 1986). In light of our conclusion that the
gun case search was legal, we need not conduct an inevitable
discovery analysis.
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Caldwell, 358 F.3d 138, 142 (1st Cir. 2004). Meada has not
demonstrated that his sentence was erroneous under this test.
1. Obstruction of justice
An obstruction of justice sentencing enhancement is
appropriate where the district court finds that "the defendant
willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice during the course of the
investigation, prosecution, or sentencing of the instant offense of
conviction." U.S.S.G. § 3C1.1 (2002). Here, the district court
imposed an obstruction of justice enhancement because it was
"firmly convinced" that Meada committed perjury when he testified
at the June suppression hearing. See id. cmt. n.4(b) (identifying
perjury as conduct to which the enhancement applies). The court
cited two specific subjects on which it believed Meada had given
false testimony: his repeated insistence that Bowering did not live
with him and his claim that he did not own any of the weapons in
the apartment. The court concluded that "Mr. Meada knowingly made
false statements which were material, and he did that in an effort
to defeat or to advance his motion to suppress."
Meada asserts that he did not commit perjury. He
essentially argues that his testimony was not false because there
is no evidence to establish either that Bowering lived at his
apartment or that he did not own the weapons. We disagree. The
court's conclusion that Meada willfully lied in his testimony about
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Bowering was not clearly erroneous. His testimony conflicted with
several other witnesses, including one of his own, who the court
considered to be more credible. The court also did not clearly err
in finding that Meada had lied about the weapons. As we have said:
Even if the record, read generously to appellant, might
conceivably support some less damning scenario -- and we
do not suggest that it can -- we would not meddle. Our
review is only for clear error -- and "where there is
more than one plausible view of the circumstances, the
sentencing court's choice among supportable alternatives
cannot be clearly erroneous."
United States v. Tejada-Beltrán, 50 F.3d 105, 110 (1st Cir. 1995)
(quoting United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990).
2. Acceptance of responsibility
Meada also argues that the district court erred in
denying him a three-level reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1. He acknowledges that
"[c]onduct resulting in an enhancement under § 3C1.1 (Obstructing
or Impeding the Administration of Justice) ordinarily indicates
that the defendant has not accepted responsibility for his criminal
conduct." Id. cmt. n.4. However, he asserts that this is one of
the "extraordinary cases in which adjustments under both §§ 3C1.1
and 3E1.1 may apply." U.S.S.G. § 3E1.1.
The district court, presented with the same arguments now
before us, was unpersuaded. Citing Meada's false testimony at the
suppression hearing and his ongoing insistence that he did not own
the weapons in his apartment, the court concluded that "[t]his is
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not a case where Mr. Meada attempted to obstruct justice and has
reformed. This is a case in which he's continuing the misconduct
that caused me to find in June that he had committed perjury." See
§ 3E1.1 cmt. n.3 (although pleading guilty before trial is
"significant evidence of acceptance of responsibility," that
evidence "may be outweighed by conduct . . . inconsistent with such
acceptance").
We agree that Meada has not demonstrated that this case
is "extraordinary" enough to merit an adjustment for acceptance of
responsibility despite his obstructive conduct, nor has he pointed
to any factor that the district court failed to consider.
Therefore, the district court's refusal to grant an adjustment
under § 3E1.1 was proper.
C. Booker sentencing claim
The district court sentenced Meada to 108 months in
prison under the mandatory guidelines in accordance with then-
prevailing law.5 The Supreme Court's subsequent decision in
Booker, applicable to all cases on direct review, rendered the
guidelines advisory rather than mandatory. Meada now asserts that
he should be resentenced in light of this development. Because
Meada failed to preserve this claim by arguing in the district
5
Meada had a total offense level of 30 and a Category II
criminal history. His guidelines sentencing range was 108-135
months.
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court that the guidelines were unconstitutional, our review is for
plain error. See United States v. Antonakopoulos, 399 F.3d 68, 76
(1st Cir. 2005). Under the plain error standard, we may vacate a
sentence imposed pursuant to the mandatory guidelines "where,
either in the existing record or by plausible proffer, there is
reasonable indication that the district judge might well have
reached a different result under advisory guidelines." United
States v. Heldeman, 402 F.3d 220, 224 (1st Cir. 2005).
There are such indications in this case. While we have
little doubt that the district court, had it recognized the
guidelines were advisory, would have found the pertinent sentencing
facts much as it did, see Antonakopoulos, 399 F.3d at 80, the
further question arises whether the court would have attached the
same sentencing consequences to those facts. Under the dictates of
the guidelines, Meada's perjury had a substantial impact on his
sentence. It resulted in the addition of two levels for
obstruction of justice. Furthermore, his subsequent failure to
correct the perjury when given the opportunity to do so may well
have caused the related denial of a three-level adjustment for
acceptance of responsibility. The addition of five levels exposed
Meada to an increased minimum sentencing range of nearly four
years. While the district court made clear that for other reasons
Meada should receive a "long" sentence, the court did not indicate
that nine years, the lowest sentence permitted under his sentencing
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range, was the appropriate sentence. Taking all this into account,
we think there is a reasonable probability that the district court
would have sentenced Meada to less time if it had known that the
guidelines were advisory, rather than compulsory. We therefore
vacate and remand for resentencing. However, this remand "should
not be taken as either a suggestion or a prediction that the
sentence will necessarily be altered." Heldeman, 402 F.3d at 224.
III.
The denial of Meada's suppression motion is affirmed.
Meada's sentence is vacated and remanded for further proceedings
consistent with this opinion.
So ordered.
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